Federal Court Rules that Prolonged Detention of Immigrants Is Unconstitutional

In February Cheik Diop, a
Senegalese asylum seeker, walked out of an immigration detention facility in Pennsylvania. His
release came nearly three years after he was first detained by Immigration and
Customs Enforcement (ICE) in early 2008. Last week, a federal appeals court
held that detaining Diop for 1,072-days while he fought to stay in the United States violated
the Due Process Clause of the Fifth Amendment. This important ruling gives hope
to the hundreds of thousands of immigrants who are detained every year.

In
Diop v. ICE/Homeland Security,
the Third Circuit Court of Appeals (with jurisdiction over Delaware, New
Jersey, and Pennsylvania) addressed the constitutionality of the prolonged
detention of immigrants under the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”). IIRIRA mandates that any person who is
removable from the US on the basis of a criminal conviction must be detained
while they await the outcome of their immigration cases. Diop, who represented
himself in immigration, state, and federal court, successfully argued that the
government only had the power to detain him for a reasonable period of time –
and that holding him for the 35 months it took for the courts to decide his
case was so unreasonable that it violated the Due Process Clause of the Fifth
Amendment.

According to ICE, immigrants may
be detained for as long as their deportation proceedings are pending, even if it
takes several years. In the overburdened Immigration Court system, which
employs far fewer judges than are needed to decide the outcomes of the hundreds
of thousands of cases before them each year, this means that many immigrants
are detained for years while awaiting the outcome of their case. The court
rejected ICE’s argument, ruling that the statute only authorizes detention for
a reasonable amount of time. Although the court refused to define “reasonable,”
it strongly indicated that any detention over six months risks becoming
unreasonable. At that point, an immigration detainee is entitled to a hearing
to determine whether the person should be detained further (to ensure attendance
at Immigration Court hearings), and whether he or she poses a threat to
society.

The court’s decision is an
important reaffirmation that the nation’s sprawling immigration detention
system is still bound by law and the Constitution. It also means that future
immigrants won’t suffer the torturous detention and drawn-out fight that Diop
endured in order to free himself from custody. While the goals of IIRIRA –
ensuring attendance at immigration hearings and protecting the public from
violent criminals – are undoubtedly important, its unchecked application too
often results in unnecessarily long and severe detentions. The Third Circuit
correctly interpreted Congress’ intent in enacting IIRIRA and still provided
protection for the thousands of immigrants who are detained every day.